City of Waco v. Rast

• Decision Date: 01 December 1927
• Docket Number: (No. 603.)
• Citation: 2 S.W.2d 563
• Parties: CITY OF WACO v. RAST.
• Court: Texas Court of Appeals

2 S.W.2d 563

CITY OF WACO v. RAST.

(No. 603.)

Court of Civil Appeals of Texas. Waco.

December 1, 1927.

Rehearing Denied January 12, 1928.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by Mrs. Chas. Rast against the City of Waco. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

John McGlasson, of Waco, for appellant.

Geo. M. Irving, of Houston, and Harry R. Jones and Jas. P. Alexander, both of Waco, for appellee.

GALLAGHER, C. J.

Appellee, Mrs. Charles Rast, sued the city of Waco for damages for personal injuries which she alleged she sustained as the proximate result of the negligence of appellant, its officers, agents, and servants. Appellee alleged that she stepped from a street car onto a safety zone at the corner of Fifth and Austin streets, in the city of Waco; that in passing from the safety zone to the sidewalk, she stepped over a chain lying on the pavement; that said chain was attached to a city car, known as the "hoodlum," at the front end and to another car at the rear end; that the space between said cars was about 15 feet; that just as she was in the act of stepping over said chain the person operating the front car, or city hoodlum, started the same and jerked said chain off the ground and to the height of the axles of said respective cars, thereby striking her leg and causing her to fall violently to the ground; that by reason of said fall she sustained serious injuries. She further alleged that the city, acting through its board of commissioners, the several members thereof, its city manager, and its chief of police, had ordered the parties operating said city car to clear Austin avenue from Third to Ninth streets of all private cars found standing thereon, so that said portion of said street would be open and free of all obstruction for a parade through and over the same by the cadets of the Agricultural and Mechanical College of Texas on Agricultural and Mechanical Day at the Waco Cotton Palace; that in doing so said city and the several officers thereof were acting for and on behalf of said city and the inhabitants thereof and in furtherance of the business interests of its citizens, and not in the discharge of any governmental duty or function. She also alleged negligence on the part of appellant, its officers, agents, and servants, in the manner of operating its said car at the time she received her injuries, and that each act of negligence so alleged was a proximate cause of such injuries.

The case was tried to a jury and was submitted on thirty-eight special issues. Five of said issues submitted for determination by the jury whether the parties operating said city car at the time were authorized by appellant, or certain of its officers, to remove standing cars from that portion of Austin avenue. Eighteen of the same submitted to the jury for determination whether said city, or the parties operating its said car at the time, did or failed to do certain particular things, whether such action or failure to act was negligence, and whether any of such acts of negligence were the proximate cause of appellee's injuries. Thirteen of said issues submitted for determination by the jury whether appellee did or failed to do certain specific things in connection with her attempt to step over said chain, whether such action or failure to act on her part was negligence, and whether any of such acts of negligence proximately contributed to cause her injuries. The remaining two issues submitted for determination the amount of damages, if any, which appellee had sustained by reason of her injuries. The jury answered all issues of authority, negligence on the part of appellants, its agents and servants, and proximate cause in connection therewith, in the affirmative, and all issues of contributory negligence on the part of appellee and proximate cause in connection therewith, in the negative, with a single exception. This exception was the issue of whether appellee stepped over said chain after she discovered it was fastened to one of said cars at each end thereof. This issue was answered in the affirmative, but the jury further found in answer to another issue submitted in that connection that her action in stepping over said chain did not constitute negligence. The court entered judgment on said findings in favor of appellee against appellant for the sum of $3,150 the amount of damages found in her favor by the jury. In view of the disposition made of this appeal, a fuller statement from the record is not deemed necessary.

Opinion.

Appellant presents as ground for reversal the action of the court in overruling its motion for new trial on the ground of misconduct on the part of the jury. There was a hearing on this issue in open court. Mr. Smith, one of the jurors trying the case, testified, in substance:

"All the jurors decided that the lady should recover some damages in the way of money. After we got the amount of the verdict we went ahead writing the answers to the special questions or issues. There were certain issues if answered one way would cause the lady not to get any damages at all and if answered another way would give her damages. After we all decided she should get some damages, of course, these questions had to be answered in a certain way. If one question was answered `Yes,' others should be answered `No'; and if another question was answered `Yes,' then other questions would have to be answered `Yes.' All the jurors knew how they wanted to answer the questions, but did not know whether they should be answered `Yes' or `No.' I do not know whether anything further was said than to discuss how the questions...